Most readers will already know that Lois Lerner, a manager in the IRS division processing Section 501(c)(4) exempt organizations applications, invoked her 5th Amendment privilege in the House Oversight Committee public investigation (more akin to an inquisition than an objective search for truth). The manner in which she invoked the Fifth was to first proclaim her innocence of criminal wrongdoing and then invoke the Fifth without being proffered any specific questions. I want to address both aspects of what she did.
First, she advised the Committee that she would invoke the Fifth. She did not do that in response to specific questions, which is the way the Fifth should be invoked, for only in the context of a specific question or questions can the validity of the assertion of the Fifth Amendment be determined. The corollary to that is that, she cannot be held to have improperly invoked her Fifth Amendment privilege unless she is propounded the question(s) and asserted the Fifth in response to the question(s). The Committee did not propound the questions. Hence, there is nothing to ask a court to compel her to testify or to hold her in contempt for failing to answer. I suppose the Committee could cure that by recalling her and propounding the questions -- either in a public session or a private session. Then the Committee could have something to enforce.
Second, the issue that has grabbed the public attention is whether her opening insistence on her innocence waived the Fifth Amendment privilege. There is a lot of discussion on the blogosphere on this issue and I cite one of the better discussions below. The leading authority is Mitchell v. United States, 526 U.S. 314, 321(1999) [enhanced version available to lexis.com subscribers], where the Supreme Court laid out the general rule (boldface added by JAT):
It is well established that a witness, in a single proceeding, may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details. See Rogers v. United States, 340 U.S. 367, 373 (1951) [enhanced version available to lexis.com subscribers]. The privilege is waived for the matters to which the witness testifies, and the scope of the "waiver is determined by the scope of relevant cross-examination," Brown v. United States, 356 U.S. 148, 154-155 (1958) [enhanced version available to lexis.com subscribers]. "The witness himself, certainly if he is a party, determines the area of disclosure and therefore of inquiry," id., at 155. Nice questions will arise, of course, about the extent of the initial testimony and whether the ensuing questions are comprehended within its scope, but for now it suffices to note the general rule.
One of the issues is the boldface language -- in a single proceeding. Certainly, for example, a criminal trial would be a single proceeding. If the defendant testified in his own defense in a criminal trial, he has waived the Fifth Amendment privilege and must answer questions on cross-examination within the scope of his direct testimony. I suppose the Committee hearing is a single proceeding but for reasons I note below, I question whether it is the type of proceeding contemplated by the Mitchell waiver holding.
View Jack Townsend's opinion in its entirety on the Federal Tax Crimes blog site.
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